Orissa High Court
Hari Basudev vs State Of Orissa And Ors. on 30 March, 2000
Equivalent citations: AIR2000ORI125, AIR 2000 ORISSA 125, (2000) 90 CUT LT 508
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT R.K. Patra, J.
1. The plea of the petitioner that the election petition challenging his election as Sarpanch is not maintainable having been rejected by the learned Civil Judge (Junior Division), Berhampur in the order dated 30-5-1999 at Annexure-1, he has come up with this writ petition for quashing of the same.
2. Factual Matrix :
For the election to the office of the Sarpanch, Kaluapalli Grama Panchayat the petitioner and opposite party No. 4 filed their nominations which were duly accepted. On 18-12-1996 the opposite party No. 4 filed M.J.C. No. 257 of 1996 in the Court of Civil Judge (Junior Division), Berhampur praying for rejection of the nomination paper of the petitioner. The said case was dismissed on 13-2-1997. In the meantime, i.e. on 14-1-1997 the election was held. On 21-1-1997 opposite party No. 4 filed M.J.C. No. 14 of 1997 praying for declaration that the petitioner was disqualified to contest the election. The allegation was that there was rigging of votes and casting of votes was done in the name of dead persons and absentee voters. On 27-1-1997 the election result was announced and the petitioner was declared elected. On 29-3-1997 opposite party No. 4 filed a petition In M.J.C. No. 14 of 1997 to withdraw the same with a right to refile a fresh election dispute. The learned Civil Judge on the same day (29-1-1997) passed order permitting him to withdraw the aforesaid case. In view of such order, M.J.C. No. 14 of 1997 stood withdrawn. Subsequently on 10-2-1997, he (opposite party No. 4) filed election petition bearing M.J.C. No. 29 of 1997 challenging the election of the petitioner on the same grounds/allegations made by him in M.J.C. No. 14 of 1997. The petitioner appeared before the learned Civil Judge and filed a petition contending that M.J.C. No. 14 of 1997 filed against him in which the very allegations were made having been withdrawn by him without obtaining leave to file a fresh case, M.J.C. No. 29 of 1997 is not maintainable, is already indicated, by the impugned order the learned Civil Judge overruled the petitioner's aforesaid preliminary objection.
3. There is no dispute that opposite party No. 4 in his petition seeking permission to withdraw M.J.C. No. 14 of 1997 did reserve his right to file a fresh case, if necessary. The learned Civil Judge on considering the matter allowed withdrawal of M.J.C. No. 14 of 1997 by order dated 29-l-1997 but it was not indicated in the order as to whether any liberty was given to opposite party No. 4 to file a fresh case. Therefore, the limited question that arises for consideration is in absence of any specific order granting liberty to institute a fresh case, whether the election petition (M.J.C. No. 29 of 1997) filed by the opposite party No. 4 challenging the election of the petitioner as Sarpanch is hit by Sub-rule (4) of Rule 1 of Order 23, C.P.C.
4. In order to appreciate the point at issue, a few facts are necessary to be taken note of M.J.C. No. 14 of 1997 was filed by opposite party No. 4 before declaration of the result of election with the following prayers :
" xx xx xx xx
(ii) Call for the necessary documents, records etc. from the election of the post of Sarpanch of Keluapalli Grama Panchayat held in 14th January, 1997; and
(iii) Declare the petitioner (i.e. the opposite party No. 4) as the uncontested and successful elected candidate for the post of Sarpanch of Keluapalli Gram Panchayat in this recent election; and xx xx xx xx"
On 27-1-1997 result of the election was announced. On 29-1-1997 opposite party No. 4 filed the petition to withdraw M.J.C. No. 14 of 1997 which was allowed by the learned Civil Judge on the same day, Opposite Party No. 4 filed M.J.C. No. 29 of 1997 out of which the Impugned order arises on 10-2-1997 with the following prayers "
"xx xx xx xx
(iv) On hearing set aside the election result dated 27-1-1997 of the Keluapalli G.P. as published by the respondent No. 1 which is null and void and cannot be effected, and declare that the petitioner is the uncontested elected Sarpanch of the said G.P. XX XX XX XX"
5. Chapter V of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as 'the Act') deals with conduct of elections and election disputes. Section 30 lays down that no election of a person as a member of a Grama Panchayat or as a Sarpanch or Naib-Sarpanch held under the Act shall be called in question except by an election petition presented in accordance with the provisions of Chapter V of the Act. Section 30 of the Act enumerates different grounds on which the election of a returned candidate can be declared void. From these provisions it follows that no petition under Section 30 of the Act is maintainable before the declaration of the election result. Thus M.J.C. No. 14 of 1997 which was filed prior to the declaration of the result was premature. The cause of action to file election petition under Section 20 of the Act arose only after the publication of the result of election.
6. Order 23, Rule 1, C.P.C. confers absolute right on a party to withdraw or abandon his suit. Sub-rule (3) of Rule 1 of Order 23 provides that the plaintiff may in the circumstances mentioned therein be permitted by the Court to withdraw from a suit with liberty to sue afresh on the same cause of action. Sub-rule (4) thereof interdicts by stating inter alia that where the plaintiff withdraws from a suit or part of a claim without permission shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
7. As already indicated, the cause of action accrued to opposite party No. 4 to file the election dispute under Section 30 of the Act only after publication of the result of the election. Opposite party No. 4 in his petition made out a case for grant of permission to withdraw M.J.C. No. 14 of 1997. He had also stated in the petition that he reserved his right to file a fresh case, if necessary. The learned Civil Judge having permitted him to withdraw the said case, we are inclined to hold that permission to institute a fresh case in the circumstances was impliedly granted. Therefore, M.J.C. No. 29 of 1997 is not hit by Sub-rule (4) (b) of Rule 1 of Order 23, C.P.C. and is clearly maintainable. For the foregoing reasons, the impugned order dated 30-6-1999 passed by the learned Civil Judge at Annexure-1 does not call for interference.
8. In the result, we do not find any merit in this writ petition which is accordingly dismissed.
L. Mohapatra, J.
9. I agree.